Rafale Review Decision Comes Down to Whether Govt Misled SC or Not

Here’s the key issue the CJI-led bench will need to consider and why it could spell trouble for the government.

The Centre’s submissions, made by Attorney General KK Venugopal, mislead the Supreme Court?

(Photo: Arnica Kala/The Quint)

The Supreme Court on Thursday, 14 November, is scheduled to decide on petitions seeking a review of its judgment giving a clean chit to the Modi government in the Rafale fighter jet deal with French firm Dassault Aviation.

Arguments on the Rafale review petitions were heard and completed on 10 May, after months of delays, including arguments on the government’s preliminary objections that took longer than arguing the main issues.

As far back as January, we knew the basic arguments that were being raised by the primary review petitioners, Yashwant Sinha, Arun Shourie and Prashant Bhushan, which were elaborated on in court.

They had two main grounds on which they were asking the apex court to reconsider its judgment of 14 December 2018, in which it had refused to interfere in the Rafale deal, claiming that procedures were broadly followed and that aspects of the deal such as pricing were not within the purview of judicial review:

First, they pointed out that the court had failed to address their request (in their original petition to the court) for the CBI to register an FIR in the case.

They had argued that the CBI was required to do so since they had filed a detailed complaint with the investigative agency that prima facie disclosed cognisable offences of bribery. The Supreme Court’s own Lalitha Kumari judgment says that the police/investigative agency has to register an FIR in such circumstances.

Secondly, they argued that the verdict of 14 December included a number of “patent factual and legal errors”, as a result of the court’s reliance on the Centre’s notes on aspects of the deal that were provided in ‘sealed covers’ to the judges.

The petitioners have also filed a perjury application against the Central Government because of these errors, which they claim were not mistakes, but attempts by the government to mislead the court by suppressing and withholding material information.

Too caught up to read the whole story? Listen to it instead:

It is the second argument that looks like it will be key to deciding the fate of the Rafale review petitions.

The argument on the Lalitha Kumari decision has been strongly contested by the Attorney General on behalf of the government, who has said that a prima facie case has not in fact been made out by the petitioners. The decision on whether or not a prima facie case has been made out is technically for the CBI to decide, and the court may feel that this is not within the purview of judicial review.

It should be noted, however, that the government has not submitted anything to show the CBI has even bothered making that determination, so this argument can’t be ignored – but even if accepted, this wouldn’t exactly lead to a reconsideration of the court’s original decision.

How is the Government Supposed to Have Misled the Court?

Which brings us back to the second argument, that the government misled the court. It is the contention of Sinha, Shourie and Bhushan that the Centre withheld and suppressed crucial information from the judges, and this led to the judges finding that the procedure for the deal was broadly followed, and also to their refusal to look into the pricing of the deal.

While there was already some amount of evidence in the public domain that indicated this was the case, it was the articles published after the December judgment that really supported this argument, none more so than N Ram’s explosive revelations in The Hindu.

In a series of articles, the veteran journalist (who was one of those who broke the Bofors scam back in the day) had revealed that:

• Defence Ministry officials wrote a note accusing the Prime Minister’s Office of conducting “parallel negotiations” on aspects of the deal that undermined the official Indian Negotiating Team (INT) position.
• A number of ‘Standard Clauses’ under the Defence Procurement Procedure (DPP) including anti-corruption clauses were dropped by the Defence Acquisition Council at a meeting in September 2016.
• The Cabinet Committee on Security (CCS) held a meeting to discuss the deal in September 2016 even though they were supposed to have finalised the deal on 24 August 2016.
• Three members of the INT wrote a strong dissent note questioning several aspects of the deal, including the lack of a sovereign/bank guarantee, the revised benchmark price and the capability of Dassault to deliver the aircraft on time.

None of this information seems to have been provided to the Supreme Court during the proceedings in October and November 2018. That this played a crucial role in the judges’ finding that procedure was “broadly followed”, can be seen from how the government’s submissions in a sealed cover were reproduced almost verbatim in the judgment when setting out the factual background to the deal.

These weren’t, of course, the only discrepancies in the court’s original verdict that arose out of government misinformation/errors.

The one that got the most attention was the assertion that the Comptroller and Auditor General (CAG) had already reviewed the deal and submitted a redacted report on pricing to Public Accounts Committee of Parliament, which was supposed to be in the public domain.

None of this was true at the time, with the CAG report eventually coming out in January 2019 instead – the Centre tried to argue this was a result of a grammatical misinterpretation by the court, but the court is yet to acknowledge this.

There was also a glaring mistake in conflating the Reliance groups of Anil Ambani and Mukesh Ambani to make it seem like Anil Ambani’s Reliance had been in discussions with Dassault to cooperate on the Rafale deal from back in 2012 – even though the judgment itself two paragraphs before had accepted that those negotiations were carried out with Mukesh Ambani’s Reliance, which was entirely separate. This too arose from the government’s arguments and submissions in a sealed cover.

All these issues were brought up by Prashant Bhushan and Arun Shourie in their oral arguments on Friday, before the bench of Chief Justice Ranjan Gogoi and Justices KM Joseph and Sanjay Kishan Kaul (the same bench which heard the original case).

Why Does it Matter if the Government Withheld/Suppressed Information?

Apart from the obvious moral objections to the government’s failure to provide important information to the courts, this could also provide legal grounds to set aside the original judgment.

Bhushan and Shourie repeatedly termed this ‘fraud’ (much to the dismay of Attorney General KK Venugopal) and argued this would be grounds not only to “vitiate the judgment” but also to initiate a criminal investigation.

Was this assertion correct? Previous decisions of the Supreme Court seem to indicate yes.

• In SP Chengalvaraya Naidu vs Jagannath (1993), the apex court set aside a judgment of a high court because one of the parties withheld a vital document in order to “gain advantage on the other side”. Justice Kuldip Singh held that this was not just a fraud on the other party, but on the court as well, and overturned what the high court had said.
• In Indian Bank vs M/S Satyam Fibres (1996), the Supreme Court affirmed the principle that if an order was obtained by fraud practiced upon a court, this would be grounds to “vitiate” the order. The judges also confirmed that “where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.”
• The court’s judgment in Bhaurao Dagdu Paralkar vs State of Maharashtra (2005) explores the concept of fraud in such circumstances in some detail, and considers it to include disclosure of incorrect facts knowingly and deliberately, and suppression of material documents.

What Will the Judges Need to Consider?

So the question that now remains is simple: Are the judges convinced that the government tried to mislead them?

The Attorney General surprisingly didn’t offer much by way of a direct response to this argument, even though it will clearly be crucial to the final decision. Yes, he took exception to the characterisation of the Centre’s submissions as fraud, but did he effectively argue against this information? Not really.

He instead went back to the argument he’d tried to raise as a preliminary objection to the review petitions: that the documents the petitioners were relying on to make their argument were “stolen” and “secret”. That previous attempt to get the review petitions thrown out on this basis, or at least have the “stolen” documents declared inadmissible, had been a bad look earlier, and it is a bad look now as well, as it means the government admits the documents are genuine.

No explanation was offered as to why this information was withheld, beyond a vague attempt to claim these were mere mistakes. While it is correct that mistakes wouldn’t necessarily be grounds for setting aside the judgment, it is hard to see how so many “mistakes” could have been made in this case, and that too for serious matters.

The failure to disclose the dropping of anti-corruption clauses was particularly galling, as it took a deal which was already weak in terms of compliance with the DPP and established procedure, and made it even weaker. The PMO’s parallel negotiations were also a significant fact to withhold, since the court was led to believe the commercial aspects of the deal were all negotiated by the INT, and that too without any significant dissent.

It will be interesting to see if the government provides some explanation for its failings in the next couple of weeks – all parties have been given time to submit additional written submissions – and one can only pray there are no further “mistakes” in these documents (whether in sealed cover or not).

Unless the court is convinced these were mistakes in good faith, or that this information was irrelevant to the way in which the deal was negotiated, there is no way the judges can ignore what the government did. 

But what then? Will it just recall the order and rehear arguments again? Will it take action against the government? That’s something we’ll have to wait for, and a long wait it’ll be, with court holidays lasting till the end of June.

Hopefully the wait will be worth it.

(This article was originally published in May 2019.)